People ex rel. Ryan v. Stonehedge, Inc.

No. 2--96--0620

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ex rel. JAMES RYAN, ) of McHenry County.
Attorney General of the State )
of Illinois, and ex rel. GARY )
W. PACK, State's Attorney of )
McHenry County, Illinois, ) No. 94--CH--46
)
Plaintiff-Appellant, )
)
v. )
)
STONEHEDGE, INC., ) Honorable
) James C. Franz,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________

JUSTICE COLWELL delivered the opinion of the court:

The plaintiff, the People of the State of Illinois, filed a
three-count complaint against the defendant, Stonehedge, Inc.,
alleging that deicing salt stored on Stonehedge's industrial
property leaked into the area's groundwater supply, thereby
contaminating it. The trial court ruled that there was no triable
issue of fact that supported the plaintiff's argument regarding
each of the counts and granted the defendant's motion for summary
judgment, from which the plaintiff appeals. We affirm in part,
reverse in part, and remand.
The following facts are taken from the plaintiff's complaint.
At all times relevant to this case, Stonehedge was in the business
of spreading deicing salt, which has sodium chloride as its
principal constituent, during winter months for snow removal in the
western and northwestern Chicago suburban area. In fall 1988,
Stonehedge began storing deicing salt on its property and continued
to store salt until approximately fall 1992. Stonehedge stored the
deicing salt on the ground and without a concrete pad or cover.
On several occasions between December 16, 1991, and December
7, 1992, the McHenry County Department of Health analyzed the water
from wells at several homes adjacent to the site where the deicing
salt was stored. The tests revealed high chloride levels in the
groundwater in the wells. The plaintiff subsequently filed a
complaint against Stonehedge, alleging that the defendant's pile of
deicing salt was leaking into the groundwater.
Count I of the plaintiff's complaint alleged that Stonehedge's
causing the discharge of the salt into the groundwater violated
sections 12(a) and 12(d) of the Environmental Protection Act (Act)
(415 ILCS 5/12(a), (d) (West 1994). Count II alleged that, by
allowing the salt to leak through the ground, Stonehedge altered
the physical, chemical, and biological qualities of the water so as
to render it unfit for use as potable water as measured by the
Public Water Supply Regulations. See 35 Ill. Adm. Code 620.410(a)
(1996). Count III alleged that, by depositing the deicing salt
within 200 feet of two existing potable water supply wells,
Stonehedge violated section 14.2(a) of the Act. See 415 ILCS
5/14.2(a) (West 1994). The plaintiff sought injunctive relief and
other civil remedies under all three counts.
The defendant filed a motion to dismiss the plaintiff's
complaint which was denied by the trial court. The defendant then
filed a motion for summary judgment on each of the plaintiff's
counts. The trial court granted the defendant's motion for summary
judgment on all three counts of the plaintiff's complaint. We note
that a court reporter was not present at the hearing to record the
arguments and ruling made on this date. In its order, however, the
trial court commented that, although it did not know how the
plaintiff could prove its case, the defendant's motion was granted
as a matter of law.
On appeal, the plaintiff contends that the court's order is
erroneous because a genuine issue of material fact exists regarding
each of the counts in its complaint.
Summary judgment is appropriate only when the pleadings,
depositions, and admissions on file, together with the affidavits,
if any, disclose that there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of
law. Bolingbrook Equity I Limited Partnership v. Zayre of
Illinois, Inc., 252 Ill. App. 3d 753, 764 (1993). While plaintiffs
need not prove their cases at the summary judgment stage, they must
come forward with some facts that would arguably entitle them to
judgment. Jones v. Minster, 261 Ill. App. 3d 1056, 1059 (1994).
Indeed, summary judgment is a drastic measure and should be granted
only if the movant's right to judgment is clear and free from
doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Therefore, where a reasonable person can
draw divergent inferences from undisputed facts, summary judgment
should be denied. Outboard, 154 Ill. 2d at 102. Finally, our
review of the trial court's entry of summary judgment is de novo.
Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill.
App. 3d 697, 701 (1996).
We turn first to count I of the plaintiff's complaint. Count
I alleges that the defendant stored deicing salt on its property
without a concrete pad or cover, thereby allowing the salt to seep
into the ground and cause water pollution in violation of sections
12(a) and 12(d) the Act. In pertinent part, section 12 provides:
"No person shall:
(a) Cause or threaten or allow the discharge of any
contaminants into the environment in any State so as to cause
or tend to cause water pollution in Illinois, either alone or
in combination with matter from other sources, or so as to
violate regulations or standards adopted by the Pollution
Control Board under this Act.
* * *
(d) Deposit any contaminants upon the land in such place
and manner so as to create a water pollution hazard." 415
ILCS 5/12(a), (d) (West 1994).
In its motion for summary judgment, the defendant made several
arguments regarding count I. Although the trial court stated that
it was granting the defendant's order as a matter of law, it did
not explain upon which ground it was granting summary judgment. As
our review of the trial court's entry of summary judgment is de
novo, however, we will address each of the defendant's arguments.
See Monticello, 277 Ill. App. 3d at 701.
First, the defendant contended that section 12 of the Act does
not apply to the instant case because only the Illinois Groundwater
Protection Act (415 ILCS 55/1 et seq. (West 1994)) can be used to
control groundwater in Illinois. In its reply to the plaintiff's
response for summary judgment, however, the defendant abandoned
this argument and stated that the Act could apply to groundwater,
but only the State's groundwater. Accordingly, since the
plaintiff's complaint alleges only that private wells were
contaminated, the Act does not apply in this case.
We disagree with the defendant's characterization of the
plaintiff's complaint. Count I of the plaintiff's complaint
alleges that the defendant's deicing salt contaminated the State's
groundwater. As proof of this contamination, the plaintiff refers
to chloride levels of water in nearby wells that contain this
groundwater. Accordingly, although the plaintiff refers to
contaminated wells, the water in the wells is the groundwater that
the plaintiff alleges the defendant contaminated. Therefore, the
plaintiff's complaint does allege that the State's groundwater is
polluted and section 12 of the Act applies to this case.
Second, the defendant argued that the plaintiff has not
brought forth any evidence that the Stonehedge site is
contaminated. The defendant contended that the plaintiff did not
conduct any tests on the Stonehedge site; consequently, there is no
proof that the site is contaminated. Further, the defendant
pointed to the plaintiff's expert's deposition testimony as proof
that the deicing salt did not seep through the ground and
contaminate the groundwater.
This court first notes that, at the hearing on the plaintiff's
motion to reconsider, the trial court commented that it did not
grant summary judgment on count I on this basis. We agree with the
trial court's decision. As the plaintiff points out in its briefs,
its complaint does not allege that the Stonehedge site storing the
deicing salt was contaminated. Instead, the complaint alleges that
the deicing salt leaked into the groundwater, thereby contaminating
it. The defendant does not refer this court to any statute,
regulation, or other evidence that states that a court must find
that a site is contaminated before it can conclude that the site
contaminated groundwater. Accordingly, that the plaintiff did not
sample the Stonehedge site, and did not produce evidence that the
Stonehedge site was contaminated, does not affect the merits of
this action.
Moreover, a review of the pages of the deposition attached to
the defendant's motion for summary judgment demonstrates that the
well water referred to by the plaintiff's expert was not
necessarily free from groundwater contamination. When asked
whether the test revealed that the groundwater in a certain
downgradient well was contaminated, the expert responded that he
"would have to look further at the file" to be able to answer the
question. When asked the question a second time, the plaintiff's
expert repeated his response that he would have to look at his file
and the history of the samples taken from that well to answer the
question. Finally, when pressed for an answer the third time, the
expert stated that he did not believe he had data available that
could demonstrate that the water in the well was contaminated, but
that he "would have to go back and look at the file." We find this
testimony insufficient to establish as a matter of law that the
groundwater in that downgradient well was uncontaminated. Instead,
this testimony shows that the expert was unable to answer the
attorney's question regarding the quality of water in a certain
well.
Third, the defendant argued that the plaintiff failed to
follow the proper testing procedures used to demonstrate
noncompliance with the groundwater standard. Specifically, the
defendant claimed that the plaintiffs did not comply with the
methods set forth in section 620.240(e)(1) of Title 35 of the
Illinois Administrative Code (Code) (35 Ill. Adm. Code
620.240(e)(1) (1996)), which outlined the conditions of collecting
samples of groundwater under a potential primary source or
secondary source.
The plaintiff acknowledges that it did not comply with section
620.240(e) of the Code. The plaintiff, however, explains that
subsection (e) does not apply to this case because the plaintiff
did not monitor groundwater underlying a potential primary source
or secondary source. Instead, the plaintiff argues that it was
required to follow, and followed, section 620.505(a)(5), which
applies to groundwater that is collected from a well.
Section 620.505(a) provides:
"Compliance with standards at a site is to be determined
as follows:
* * *
5) At any point at which groundwater monitoring is
conducted using any water well or monitoring well that meets
the following conditions:
A) For a potable well other than a community water
supply well, a construction report has been filed with
the Department of Public Health for such potable well, or
such well has been located and constructed (or
reconstructed) to meet the Illinois Water Well
Construction Code." 35 Ill. Adm. Code 620.505(a)
(1996).
There is no dispute that the groundwater sampled in the instant
case came from two water wells downgradient from Stonehedge's
property. Accordingly, we agree with the plaintiffs that in the
instant case section 620.505(a)(5)(A) applies instead of section
620.240(e)(1). We find, however, that there is no evidence that
the plaintiff has complied with section 620.505(a)(5)(A).
Under section 620.505(a)(5)(A), a water well can be monitored
for groundwater quality if a construction report has been filed
with the Department of Public Health or if the well meets the
Illinois Water Well Construction Code (Well Code) (77 Ill. Adm.
Code 920.10 et seq. (1996)). See 35 Ill. Adm. Code
620.505(a)(5)(A) (1996). The plaintiff acknowledges that there
are not any construction reports on file concerning the wells at
issue. Instead, the plaintiff contends that the wells meet the
second part of the test outlined in section 620.505(a)(5), as they
are wells that meet the Well Code.
There is no evidence, however, that the wells in question
comply with the Well Code. The plaintiff crafts the unique
argument that the wells are in compliance with the Well Code while
at the same time acknowledging that the wells are not in compliance
with the requirements in the Well Code. Indeed, the plaintiff
admits that the wells do not meet the standards or requirements set
out by the Well Code for a well. The plaintiff maintains, however,
that because the wells existed before the Well Code was enacted,
the wells were "grandfathered" in as being in compliance with the
Well Code, even if they do not meet the Well Code's requirements.
In support of its argument, the plaintiff refers this court to
section 920.110 of the Well Code (77 Ill. Adm. Code 920.110
(1996)). According to section 920.110, "[w]ells constructed prior
to the adoption of this Part may not meet the criteria established.
When a well is to undergo modification, reconstruction, or repair,
the work shall include those changes necessary to make the well
conform to this Part." 77 Ill. Adm. Code 920.110(a) (1996). The
plaintiff contends that this section provides that, because the
wells in the instant case existed before the Well Code was enacted,
they are in compliance with the Well Code for the purposes of
groundwater monitoring. We disagree.
The fundamental canon of statutory construction is to
ascertain and give effect to the intention of the legislature.
Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). The most reliable
indicator of legislative intent is the language of the statute
which is given its plain and ordinary meaning. Boaden v.
Department of Law Enforcement, 171 Ill. 2d 230, 237 (1996). Where
the language of the statute is clear and unambiguous, we must give
it effect as written, without reading into it exceptions,
limitations, or conditions that the legislature did not express.
Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 378 (1996). Courts should not, under the guise of statutory
construction, add requirements or impose limitations that are
inconsistent with the plain meaning of the statute. Nottage, 172 Ill. 2d at 392.
Using these principles, this court must determine whether the
legislature intended for wells that do not comply with the criteria
of the Well Code to be wells from which samples may be taken to
determine whether the groundwater is in compliance with the
groundwater quality standards. We find that a reasonable reading
of the statute shows that the legislature did not intend this
result.
This court agrees with the plaintiff that the Well Code
acknowledges that existing wells may not meet the criteria
established in the Well Code. See 77 Ill. Adm. Code 920.110(a)
(1996). We do not believe, however, that such an acknowledgement
signifies that all existing wells, even though in noncompliance
with the Well Code's requirements, are automatically considered
wells in compliance with the Well Code. Instead, we find that
section 920.110's purpose was to acknowledge that the wells in
existence at the time the Well Code was enacted did not have to
meet the Well Code requirements unless or until the well was
modified. Then, as soon as a well was modified in some way, it
would have to be modified in such a manner that it complied with
the Well Code criteria. See 77 Ill. Adm. Code 920.110(a) (1996).

A look at section 620.505(e)(5)(A) supports our analysis. In
section 620.505(e)(5)(A), the Code explains that a well meets the
conditions to test for contamination if the well has been
constructed or reconstructed to meet the Well Code. If all
existing wells were automatically considered to be in compliance
with the Well Code for the purposes of testing for contamination,
there would be no reason for the legislature to refer to wells
reconstructed to meet the Well Code criteria. Consequently, for
the word reconstructed to have any meaning under the Well Code,
existing wells cannot be considered to be automatically in
compliance with the Well Code. See Harris v. Minor Healthcare
Corp., 111 Ill. 2d 350, 362-63 (1986) (courts will avoid the
construction of a statute which would render any part of it
meaningless).
Therefore, we find that the portion of the Well Code that
states that existing wells may not meet the Well Code's criteria
merely provides that an existing well need not be modified to meet
the criteria under the Well Code. Instead, existing wells would
only be required to meet the criteria in the Well Code at the time
that they were modified, reconstructed, or repaired. See 77 Ill.
Adm. Code 920.110 (1996). In this case, the wells at issue
existed at the time the Well Code was enacted and were never
modified, reconstructed, or repaired to meet the Well Code
criteria. Accordingly, they do not meet the Well Code's
requirements for testing for contaminated groundwater. Thus, we
find that the plaintiff's groundwater samples cannot be used to
determine whether the groundwater in those wells was contaminated,
and, if so, whether the water was contaminated by the defendant's
deicing salt. Consequently, the trial court's grant of summary
judgment was proper concerning count I.
Count II of the plaintiff's complaint also depends on the
groundwater samples taken from the wells that we have deemed not in
compliance with the Well Code. Therefore, we find that summary
judgment was properly granted also regarding count II.
Count III of the plaintiff's complaint alleges that Stonehedge
violated section 14.2 of the Act by placing at least 50,000 pounds
of deicing salt in a pile, which qualifies as a new potential
secondary source (415 ILCS 5/3.60(5) (West 1994)), within 200 feet
of two existing water supply wells (see 415 ILCS 5/14.2 (West
1994)). Stonehedge contends, however, that it is not a "new"
potential secondary source and that the plaintiff has not brought
forth any evidence that it ever stored more than 50,000 pounds of
deicing salt on its property.
There is no dispute that a potential secondary source is a
unit, facility, or site that stores or accumulates at any time more
than 50,000 pounds of any deicing agent. See 415 ILCS 5/3.60(5)
(West 1994). Further, both parties agree that a "new" potential
secondary source under the Act is a potential secondary source that
is not in existence at its location as of July 1, 1988. See 415
ILCS 5/3.60(6)(i) (West 1994). The parties disagree, however, as
to whether the Stonehedge site meets both of these definitions.
First, the defendant argues that it is not a potential
secondary source because it has never stored more than 50,000
pounds of deicing salt on its site. Stonehedge contends that its
president stated in an affidavit that, based on his personal
knowledge and upon the records, there was never as much as 50,000
pounds of deicing salt stored on the facility. Accordingly, the
burden was upon the plaintiff to present facts contrary to the
affidavit. Since the plaintiff has failed to bring forth any facts
that dispute the facts in the president's affidavit, however, the
defendant's affidavit is uncontested and the material facts therein
must be accepted as true. See Carruthers v. B.C. Christopher &
Co., 57 Ill. 2d 376, 381 (1974). Therefore, Stonehedge argues, the
trial court correctly found that, as a matter of law, Stonehedge
never stored more than 50,000 pounds of deicing salt on its
property.
The plaintiff acknowledges that it cannot rely on its
pleadings if the defendant has filed a motion for summary judgment
with affidavits or depositions attached to support its allegations.
The plaintiff maintains, however, that there are not any affidavits
or depositions in the record that support the defendant's
allegation that it has never stored more than 50,000 pounds of
deicing salt on its property. Specifically, the plaintiff states
that the affidavit referred to by the defendant was attached to an
earlier motion to dismiss that was later withdrawn. Consequently,
the plaintiff maintains that the defendant has not brought forth
any evidence supporting its allegation that Stonehedge has never
stored more than 50,000 pounds on its site, and the plaintiff is
entitled to rely on its pleadings to create a question of material
fact.
We agree with the plaintiff that the record is absent of any
evidence that Stonehedge never stored more than 50,000 pounds of
deicing salt on its property. As the plaintiff maintains, the
affidavit Stonehedge refers to was attached to a motion to dismiss
that was later withdrawn. Indeed, we note that the trial court's
order granting the defendant's motion to withdraw the motion to
dismiss provides explicitly that the defendant's motion to withdraw
its affidavit is also allowed. The record shows that Stonehedge
never refiled the affidavit. Further, Stonehedge does not contend
that it ever refiled the affidavit, or that any other document it
filed in its motion for summary judgment supports its position that
it never stored more than 50,000 pounds of salt on its property.
As a result, we find that the plaintiff's allegations
contained in its pleadings that Stonehedge was a potential
secondary source because it stored over 50,000 pounds of deicing
salt on its property remains a question of fact that precludes
summary judgment on that issue. See Malone v. American Cyanamid
Co., 271 Ill. App. 3d 843, 846 (1995) (a party opposing a motion
for summary judgment need not file any counteraffidavits and may
rely solely upon the pleadings to create a material question of
fact until the movant supplies facts that would clearly entitle him
to judgment as a matter of law).
Second, Stonehedge contends that, even if a question of
material fact exists as to the amount of salt it had on its
facility, summary judgment was proper because the record
demonstrates that it was not a "new" potential secondary source as
a matter of law. Stonehedge argues that it attached portions of
deposition testimony to its motion for summary judgment that show
that Stonehedge has been storing deicing salt on its facility since
1987. Therefore, Stonehedge maintains that since it has been
storing salt before July 1, 1988, it cannot be considered a "new"
source. We disagree.
We note that the defendant has fashioned an interesting
argument regarding this count of the plaintiff's complaint. On one
hand, Stonehedge argues that it never has stored more than 50,000
pounds of deicing salt on its property. On the other, Stonehedge
contends that it cannot be a new source because it has stored more
than 50,000 pounds of deicing salt on its facility prior to July 1,
1988. Nevertheless, we find the record inadequate to determine
that, as a matter of law, Stonehedge is not a new potential
secondary source.
Under the Act, a new potential secondary source is a potential
secondary source that was not in existence as of July 1, 1988. In
this case, the storage of more than 50,000 pounds of deicing salt
is the event that qualifies Stonehedge as being a potential
secondary source. Accordingly, if, as the plaintiff alleges,
Stonehedge first stored or accumulated more than 50,000 pounds of
deicing salt after July 1, 1988, it would be a "new" potential
secondary source. In other words, Stonehedge's evidence that it
stored deicing salt on its site prior to July 1, 1988, is
irrelevant concerning the issue of whether Stonehedge is a new
potential secondary source. Instead, the only relevant inquiry is
whether Stonehedge stored or accumulated more than 50,000 pounds of
deicing salt before July 1, 1988.
The defendant has not produced any evidence that it stored
more than 50,000 pounds of deicing salt on its facility prior to
July 1, 1988. Consequently, the plaintiff did not have the burden
of producing contrary evidence and the question of whether the
defendant is a new potential secondary source remains a question of
fact for the trier of fact to decide. See Malone, 271 Ill. App. 3d
at 846 (party opposing a motion for summary judgment need not file
any counteraffidavits to create a material question of fact unless
the moving party presents evidence that precludes any possible
liability).
In conclusion, we find that the trial court's order granting
summary judgment for the defendant on counts I and II of the
plaintiff's complaint was proper. We find, however, that the
record was insufficient to establish, as a matter of law, that the
defendant never stored more than 50,000 pounds of deicing salt on
its property and that the defendant was not a new potential
secondary source. Accordingly, the court's grant of summary
judgment regarding count III was erroneous and is reversed.
For the foregoing reasons, the judgment of the circuit court
of McHenry County is affirmed in part and reversed in part, and the
cause is remanded.
Affirmed in part and reversed in part; cause remanded.
GEIGER, P.J., and THOMAS, J., concur.